Andhra Pradesh High Court - Amravati
The Nri Acadamy Of Sciences vs The State Of Ap on 12 December, 2024
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH Bench
Sr.Nos:-
AT AMARAVATI
SL-1 to 19
[3446]
APHC010158802020
WRIT PETITION NO: 9871 of 2020
ALONG WITH
W.P. Nos.5696 and 5699 of 2022; W.P.Nos.9750, 9812,
9814, 9874, 9875, 9876, 9877, 10159, 10195, 10229,
10290, 10292, 10300, 10345 & 10371 of 2020 and
W.P.(PIL) NO: 150 of 2020
WRIT PETITION NO: 9871 of 2020
Mother Theressa Educational Society
and Others
...Petitioner(s)
Vs.
The State Of Ap and Others ...Respondent(s)
**********
Advocate for Petitioner: Mr. Srinivasa Rao Narra, Mr. Challa
Gunaranjan, Mr. Dharmesh D K
Jaiswal, Mr. S.V.S.S.Sivaram
Advocates for Respondents: Learned Advocate General, Learned
Deputy Solicitor General of India,
Mr. C Sudesh Anand
CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR
SRI JUSTICE R RAGHUNANDAN RAO
DATE : 12th December, 2024.
PER DHIRAJ SINGH THAKUR, CJ:
There are two sets of petitioners before us. One set of petitioners are
the various private unaided minority and non-minority medical colleges and
their associations, who challenge Government Order No. 56, dated
29.05.2020, issued by the Government of Andhra Pradesh, Medical, Health
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and Family Welfare Department, which fixes the fee for postgraduate
medical courses for the block period 2020-21 to 2022-23.
2. Second set of petitioners are the candidates who seek the
enforcement of Government Order No. 56, fixing the fee for the PG courses
in various medical colleges. WP(PIL) No. 150 of 2020 is filed seeking a
similar relief.
LEGAL FRAMEWORK:
3. There is in force in the State of Andhra Pradesh an Act called the
Andhra Pradesh Higher Education Regulatory and Monitoring Commission
Act, 2019 (hereinafter referred to as, "the Act of 2019"). The said Act,
according to the preamble, was enacted "to establish the Andhra Pradesh
Higher Education Regulatory and Monitoring Commission to maintain
standards of education, regulation of fee, service condition of teachers and
safeguard the interest of students and to ensure public spiritedness, equity,
excellence, financial stability and probity along with good governance and
for matters connected therewith or incidental thereto."
4. The Act is meant to apply to all higher educational institutions
including medical, dental, agriculture, horticulture and veterinary institutions
in the State of Andhra Pradesh.
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The Commission is headed by a Chairperson, who is to be a retired
Judge of the High Court and other members, in terms of Section 4 of the
said Act.
5. Chapter III deals with Powers and Functions of the Commission.
Section 9(ii), in particular, provides that the Commission shall have the
power to monitor and regulate fee in higher educational institutions in
accordance with the rules, guidelines and procedures prescribed for that
purpose.
6. In exercise of the powers conferred under sub-section 1 of Section
23 of the Act of 2019, the rules called as the Andhra Pradesh Higher
Education Regulatory and Monitoring Commission Rules, 2019 (for short,
"the Rules") have been framed.
Rule 8 of the said Rules deals with the power of the Commission to
call from each institution its proposed fee structure well in advance along
with the relevant documents and books of account for scrutiny.
The Commission in terms of Rule 8(2) has the power to decide
whether the fee proposed by the institutions is justified and does not amount
to profiteering or charging of capitation fee.
Rule 8(3) vests in the Commission the liberty to approve or alter the
proposed fee for each course to be charged by the institution. The proviso,
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however, envisages that it shall give the institution an opportunity of being
heard before fixing any fee or fees. Rule 8(4) requires the Commission to
take into consideration the following factors while prescribing the fee.
"(a) The location of the Higher Educational Institution,
(b) The nature of the course,
(c) The cost of available infrastructure,
(d) The expenditure on administration and maintenance,
(e) A reasonable surplus required for growth and development of
the Higher Educational Institutions,
(f) The revenue foregone on account of waiver of fee, if any, in
respect of students belonging to the Scheduled Caste,
Scheduled Tribes and wherever applicable to the Socially and
Educationally Backward Classes and other Economically
Weaker Sections of the Society, to such extent as shall be
notified by the Government from time to time,
(g) Any other relevant factor."
7. The Rules further envisage that the Commission shall communicate
the fee structure as determined by it to the Government for notification under
Act 5 of 1983.
8. It has been further envisaged that the fee determined by the
Commission shall be valid for a period of three years. Rule 8(7) envisages
further that the fee so determined shall be applicable to a candidate who is
admitted to an institution in that academic year and shall not be altered till
the completion of his/her course in the institution in which he/she was
originally admitted.
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9. Section 22 of the Act provides that the Commission may make
regulations to carry out the provisions of this Act, with prior approval of the
Government. In exercise of the powers conferred by sub-section 1 of
Section 22 of the Act of 2019, the Government approved the Regulations
called as the Andhra Pradesh Higher Education Regulatory and Monitoring
Commission Regulations, 2020 (for short, "the Regulations").
10. The said Regulations were notified in the Andhra Pradesh Gazette
on 5th of March 2020. Regulation 4 (4) inter alia envisages that the
Commission shall have the power to request a higher educational institution
to furnish information as may be necessary for enabling the Commission to
regulate the conduct of admissions and/or to fix the fee in respect of each
course offered in the institution.
11. Regulation 5(5) envisages that the Commission shall decide
whether the fees collected or proposed to be collected by the institutions,
whatsoever under all heads including hostel and mess charges is justified
and does not amount to profiteering or charging of capitation fee.
It further provides that the decision of the Commission shall be final
provided that such decision shall be taken only after giving a reasonable
opportunity to the institution to represent its case.
For facility of reference, the relevant sub-regulations in Regulation 5
are reproduced hereunder:
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"(6) For furnishing the fee proposal by the Institution, the
Institutions shall submit audited statements of income
and expenditure, balance sheets and particulars of
expenditure including salaries, infrastructure, hostel &
mess facilities and such other information as the
Commission may prescribe along with the necessary
supporting documents, ledgers and Bank statements in
PDF files.
(7) The fee proposals furnished by the Institutions have
to be evaluated based on the income and expenditure of
the Institutions as well as the societies/trusts under
whose umbrella the said Institutions are established.
(8) The Institutions shall submit all the required financial
information as per the mercantile (accrual) system of
accounting only.
(9) The Institution shall submit the required information
such as the details of the fee collections, income and
expenditure statements, teaching and non-teaching staff
salaries of all kinds, administrative and other expenses,
statement of revenue grants received, utilization of
amounts collected under the NRI quota, details of Term
Deposits of the Institutions, details of the loans received
from the Societies, Banks/Financial Institutions and loans
received from other non-banking Financial Institutions,
statements of corpus / capital fund, capital grants
received and utilised, grants/funds received from any
source on account of research projects and their
utilization details, legal expenditures, student result
particulars and other information.
(10) In order to consider the expenditure on teaching and
non-teaching staff, the cadre strength fixed by the
respective regulatory authorities and accreditation bodies
needs to be adopted.
(12) In case of any infrastructure and/or services of any
staff utilized for more than one programme, the
expenditure on such infrastructure and/or staff shall be
apportioned appropriately, based on students strength,
among the different programmes.
(19) The Institutions shall maintain details of student fee
collection and utilization, salaries of teaching and non-
teaching staff, faculty details subject wise, particulars of
infrastructure and other expenditure and furnish the same
online to the Commission.
(20) If the details required under these guidelines are not
furnished or the financial statements furnished are found
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inaccurate, the financial statements shall not be
considered for the fee proposals.
(34) The fee approved by the Commission at any point in
time shall be valid for a period of three years next; and
subsequent change in fees, if any, shall be applicable
only in respect of new admissions.
(35) The Commission may recommend the fee in Private
Aided or Unaided Higher Educational Institution for
different professional programmes of study and different
categories of students, having due regard to the
guidelines, if any, notified by Regulatory Authorities from
time to time.
(36) (a). The principle of determining uniform fee
structure for all students of Higher Education Institutions
shall not come in the way of determining differential fee
structure to benefit the more meritorious sections of
students admitted under the convener quota from that of
the Management and NRI quota;
(b) The institution shall be at liberty to collect the fee for
the Management quota seats up to two (2) times of the
fee notified for the Convener quota of seats in order to
maintain quality of education by providing proper
infrastructural and instructional facilities and amenities;"
12. The case of the petitioner colleges is that the Andhra Pradesh
Higher Education Regulatory and Monitoring Commission (for short,
"Commission - APHERMC") invited private, unaided medical and dental
institutions to submit their proposals for fee structure for the block period
2020-21 to 2022-23 vide notification dated 09.01.2020.
13. The petitioner colleges responding to the said notification
submitted the requisite material and data in support of the proposals for fee
structures in respect of the fee structures proposed by them. The
Commission, it is stated, sent its recommendations to the Government vide
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letter dated 24.05.2020 and the Government subsequently notified the said
recommendations vide the Government Order No.56, dated 29.05.2020,
which is impugned in the present petitions.
14. The fee which has been fixed in the order impugned for
postgraduate medical courses as also dental courses is as under:
For Post Graduate Medical Courses:
Name of the Category-A Category-B Category-C
Sl.No
Course Convener Quota Management Quota NRI/Institutional Quota
1 Clinical degree Rs.4,32,000/- Rs.8,64,000/- Rs.50,00,000/-
Para clinical degree
2 Rs.1,35,000/- Rs.2,70,000/- Rs.15,00,000/-
and diploma
3 Pre clinical degree Rs.61,200/- Rs.1,22,400/- Rs.8,00,000/-
For Post Graduate Dental Courses:
Name of the Category-A Category-B Category-C
Sl.No
Course Convener Quota Management Quota NRI/Institutional Quota
1 Clinical degree Rs.2,97,000/- Rs.5,94,000/- Rs.12,00,000/-
Para clinical degree
2 Rs.2,67,300/- Rs.4,34,600/- Rs.7,00,000/-
and diploma
15. The petitioners who are running the medical colleges are
aggrieved of the Government Order impugned, inasmuch as they state that
the data and material which was furnished by them to the Commission was
not at all considered and was ignored. It was urged that fee had to be fixed
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qua every college/institution and that uniform fee could never have been
fixed as the same was never envisaged by the Act, the Rules and the
Regulations. It was urged that the fee for a 'Category-A Convener Quota'
seat for the block period of three years from 2020-21 to 2022-23 which was
fixed at Rs.4,32,000/-, was even less than the fee fixed for a 'Category-A
Convener Quota' seat for the previous block period from 2017-18 to 2019-20
which was Rs.6,90,000/-.
16. Learned counsel for the petitioner Colleges, Mr. Challa
Gunaranjan, would submit that by fixing a uniform fee structure for all the
medical colleges across the board, the Commission has not only violated the
provisions of the Act, the Rules and the Regulations framed under the Act,
but also acted in gross violation of the Apex Court judgment rendered in the
case of T.M.A. Pai Foundation v. State of Karnataka, 1 wherein the
majority judgment observed that fixation of a rigid fee structure would be an
unacceptable restriction.
17. It is stated that as per the said judgment, the decision to fix the fee
ought to have necessarily been left to a private education institution which
was not seeking any aid from the Government.
18. It was urged that if the right to fix the fee was taken away from the
petitioners who are running the colleges, it would grossly affect the
standards of their institutions inasmuch as lowering of the fee chargeable
1 (2002) 8 SCC 481
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from the candidates would result in payment of lesser scales of fee to the
faculty, which would have the effect of a brain drain from the institutions run
by the petitioners.
19. It was stated that while the right to propose the fee was vested in
the petitioners, the official respondents clearly could question the fee
proposed, in case, it was found on the basis of data that there was any
element in the fee structure proposed by them, which would amount to
profiteering.
20. Learned Advocate General appearing for the State at the very
outset stated that the legal position as propounded by the learned counsel
for the petitioner colleges is unquestionable and that the fee had to be fixed
on the basis of the data provided by the colleges. Yet an effort was made by
the Learned Advocate General to suggest that perhaps the fixation of fee, in
accordance with the ratio of the Apex Court judgments rendered in the case
of T.M.A. Pai Foundation (supra), and P.A. Inamdar v. State of
Maharashtra, 2 as also the Act, the Rules and the Regulations framed
thereunder could be followed for the next block period 2023 to 2026, and
that perhaps if the candidates who are either undergoing the courses or
have already finished the courses could agree to paying some extra amount
in addition to the one which was fixed by the Commission, the matter could
perhaps be settled without going into the evaluation of the data individually
produced by the colleges.
2 (2005) 6 SCC 537
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21. Learned counsel for the candidates, Mr. Dharmesh D K Jaiswal,
however, submitted that he would have to take time to seek instructions from
the candidates on the suggestion made by the Learned Advocate General.
22. We, however, feel that it may not be absolutely necessary to
proceed on the suggestion made by the Learned Advocate General,
inasmuch as we have to consider whether the procedure adopted by
APHERMC was in accordance with the Act, the Rules and the Regulations
framed.
23. We have heard learned counsel for the parties at length.
24. It is not denied by any of the respondents that the Commission in
fixing a uniform rate of fee across the board for all institutions has in fact
violated not only the directions of the Apex Court but also the entire scheme
which was framed under the Act and the Rules and the Regulations. The
scheme as it is applicable in the State of Andhra Pradesh by virtue of the
application of the Rules and the Regulations supra would clearly show that
the Commission was required to, based upon the data produced by each of
those institutions, determine whether there was any element of profiteering
in the fee structure so proposed by them.
25. It is not understandable that even when the Commission had
invited from all the institutions, the requisite data with regard to various
aspects pertaining to fee regulation in the form of Schedules 1 to 31 and the
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said information was provided by the institutions, yet nothing is put forth for
our perusal as to how the said data was treated by the Commission. It
appears that the Commission had adopted some sort of a thumb rule even
when each of the individual institutions had put forth for the perusal of the
Commission the material justifying their fee proposals.
26. In fact, the uniform fee fixed by the Commission - APHERMC,
may also be contrary to the interest of some students who may be forced to
pay more fee to certain colleges, which did not even justify charging the fee
that was fixed by Commission. There may still be colleges who may still be
profiteering from the fee fixed by the Commission, as we do not know
whether the uniform fee fixed by the Commission and applicable to such
category of colleges actually deserve to charge that fee on account of lack of
infrastructure, lack of good faculty, etc.
27. On the other hand, there may be colleges, which may justify
charging a higher fee on account of better infrastructure, better faculty,
equipment, etc. Unfortunately, these issues appeared never to have been
gone into by the Commission - APHERMC.
28. It would be worthwhile to reproduce the observations made by the
Apex Court in T.M.A. Pai Foundation (supra), wherein at paragraphs 54
and 56, it was held:
"54. The right to establish an educational institution
can be regulated; but such regulatory measures must,
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in general, be to ensure the maintenance of proper
academic standards, atmosphere and infrastructure
(including qualified staff) and the prevention of
maladministration by those in charge of management.
The fixing of a rigid fee structure, dictating the
formation and composition of a governing body,
compulsory nomination of teachers and staff for
appointment or nominating students for admissions
would be unacceptable restrictions.
56. An educational institution is established for the
purpose of imparting education of the type made
available by the institution. Different courses of study
are usually taught by teachers who have to be
recruited as per qualifications that may be prescribed.
It is no secret that better working conditions will
attract better teachers. More amenities will ensure
that better students seek admission to that institution.
One cannot lose sight of the fact that providing good
amenities to the students in the form of competent
teaching faculty and other infrastructure costs money.
It has, therefore, to be left to the institution, if it
chooses not to seek any aid from the Government, to
determine the scale of fee that it can charge from the
students. One also cannot lose sight of the fact that
we live in a competitive world today, where
professional education is in demand. We have been
given to understand that a large number of
professional and other institutions have been started
by private parties who do not seek any governmental
aid. In a sense, a prospective student has various
options open to him/her where, therefore, normally
economic forces have a role to play. The decision on
the fee to be charged must necessarily be left to the
private educational institution that does not seek or is
not dependent upon any funds from the Government."
29. While holding so, the Apex Court further went on to hold that since
education was regarded as a charitable occupation, education institutions
could not be permitted to charge a fee which amounts to profiteering. It was
held:
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"57. ...Since the object of setting up an educational
institution is by definition "charitable", it is clear that
an educational institution cannot charge such a fee
as is not required for the purpose of fulfilling that
object. To put it differently, in the establishment of
an educational institution, the object should not be
to make a profit, inasmuch as education is
essentially charitable in nature. There can,
however, be a reasonable revenue surplus, which
may be generated by the educational institution for
the purpose of development of education and
expansion of the institution."
30. The Apex Court in P.A. Inamdar (supra) sounded a note of
caution to the Committees, which were directed to be constituted in terms of
the judgment of the Apex Court in Islamic Academy of Education v. State
of Karnataka,3 in the following manner:
"149. However, we would like to sound a note of
caution to such Committees. The learned counsel
appearing for the petitioners have severely criticised
the functioning of some of the Committees so
constituted. It was pointed out by citing concrete
examples that some of the Committees have indulged
in assuming such powers and performing such
functions as were never given or intended to be given
to them by Islamic Academy [(2003) 6 SCC 697] .
Certain decisions of some of the Committees were
subjected to serious criticism by pointing out that the
fee structure approved by them was abysmally low
which has rendered the functioning of the institutions
almost impossible or made the institutions run into
losses. In some of the institutions, the teachers have
left their jobs and migrated to other institutions as it
was not possible for the management to retain talented
and highly qualified teachers against the salary
permitted by the Committees. Retired High Court
Judges heading the Committees are assisted by
experts in accounts and management. They also have
the benefit of hearing the contending parties. We
expect the Committees, so long as they remain
3 (2003) 6 SCC 697
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functional, to be more sensitive and to act rationally
and reasonably with due regard for realities. They
should refrain from generalising fee structures and,
where needed, should go into accounts, schemes,
plans and budgets of an individual institution for the
purpose of finding out what would be an ideal and
reasonable fee structure for that institution."
31. To our mind, the responsibility which lies upon the Commission to
consider the fee proposals, with a view to remove any element of
profiteering is an onerous responsibility. A balance has to be maintained to
ensure that the fee structure which is proposed by the institutions is not
interfered with on general considerations of compassion for the students,
inasmuch as an unqualified compassion for students may result in greater
harm to the institutions, which might be affected in terms of quality,
efficiency and productivity. An abysmally low fee structure or a fee structure
tinkered by the Commission, which is unrealistic, will only ensure that the
institutions involved in specialized professional courses would face closure
sooner than later.
32. In fact, there is no justification for the Commission not to go into all
the elements of the proposed fee structure and test them on the basis of the
criteria which has been fixed according to the Rules and Regulations as they
have the wherewithal and assistance of the requisite professional chartered
accountants to guide them on that aspect.
33. We need to mention here that after the Commission had fixed the
uniform fee, which was made applicable to all institutions across the board,
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the institutions had decided to not make any admissions to the PG courses
run by them. It then appears that there was an out-of-court arrangement
between the institutions as also the candidates, whereby it was decided that
each candidate would pay approximately 45,000 per year during the block
period in addition to the fee which had been fixed by the Commission. Not
only this, it also appears that the candidates had undertaken that they would
abide by the decision of the Court in the batch of petitions, which were
pending. The aforementioned agreement was also recorded by this Court in
its order, dated 9th of July, 2020.
34. Be that as it may, we hold that G.O.Ms.No.56, dated 29.05.2020,
issued by the Health Medical and Family Welfare (C1) Department is
unsustainable in law. The same is accordingly set aside. The commission is
directed to undertake the exercise of fee fixation to examine the proposed
fee structures individually in all the cases and pass orders thereupon within
a period of two (2) months. In case the Commission wishes to disagree with
the fee proposed in regard to any head, an opportunity would be given to the
concerned institution to seek its view on the same before final orders are
passed, which should be reasoned.
35. We make it clear that in case the Commission increases the fee
structure of any of the colleges, the same would entitle such of the petitioner
colleges to claim the balance fee from the candidates who are either
undergoing the course or have even completed the courses, as per the
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undertakings submitted by them. However, we leave the colleges free to
decide whether they would proceed to claim such additional fee.
36. The petitions are disposed of accordingly. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
DHIRAJ SINGH THAKUR, CJ.
R RAGHUNANDAN RAO, J.
SSN